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Supreme Court Will Hear Former Va. Governor's Case

Jan. 19 — The U.S.
Supreme Court Jan. 15 announced it will hear the appeal from former
Virginia Gov. Robert F. McDonnell (R), the first Virginia governor
to be convicted of a felony.

The court limited review to the first question
presented by the petition, which focuses on the interpretation of
the term “official act” and whether its definition is
unconstitutionally broad.

David Smith, a white collar crime attorney and
partner at Smith & Zimmerman in Alexandria, Va., said he knew
the case would make it to the Supreme Court when he co-wrote the
amicus curiae brief in the U.S. Court of Appeals for the Fourth
Circuit case for the National Association of Criminal Defense
Lawyers.

Smith told Bloomberg BNA in a Jan. 19 phone
interview that the official acts in question essentially revolve
around McDonnell providing access and setting up meetings with
other governmental officials.

“If arranging a meeting with a government official
was an official act, then virtually every government official is at
risk of being indicted at the whim of his local federal
prosecutor,” Smith said.

Typically, official acts include actions of the
government that affect areas like legislation, budgeting or
awarding government contracts, Smith explained. Calling a governor
granting access to other public officials into question could upend
how the American system of government works, he said.

For example, the law draws no distinction between
campaign contributions and personal contributions, Smith said. That
is why so many former governors and state attorneys general entered
amicus curiae briefs to weigh in on the definition of official
acts, he said.

“The crime almost becomes ‘taking a lot of money and
favors from a constituent,'” he stated.

Definition of ‘Official
Act.'

McDonnell and his wife, Maureen, were convicted for taking bribes from Jonnie R. Williams—a Richmond, Va., businessman—in exchange for official government favors. The case at hand does not involve McDonnell's wife.

Those favors included trying to get Virginia's tobacco commission to fund a study on ingredients in a supplement sold by Williams's company and attempting to add that supplement to the insurance plans for state workers. McDonnell argued the actions were insignificant, but the Fourth Circuit disagreed and affirmed the conviction.

Smith said he ultimately believes the Supreme Court will overturn the conviction. However, he added, the court might take an easier course by saying McDonnell's actions were not official acts, but declining to define what actions constitute official acts.

While Smith said a change in the definition of official acts could be a welcomed one, the justice system—including the Supreme Court—is not the appropriate avenue for that change.

“It opens up a can of worms and makes prosecutors the arbiters of ordinary political conduct,” Smith said. “It should be up to Congress and not up to an assistant U.S. attorney in the Eastern District of Virginia.”

More Than Mere ‘Access.'

In its brief to the court, the Justice Department
argued that McDonnell went beyond a general grant of access.
Rather, the DOJ says McDonnell accepted lavish gifts and loans in
exchange for his “agreement to use his position to influence state
officials to dispose of government matters in a manner favorable to
Williams.”

To support that point, the government discussed the
first Supreme Court case on the issue of official acts,
United States v. Birdsall, 233 U.S.
223 (1914). The court found two law enforcement officers guilty of
accepting bribes in exchange for official acts in sentencing, even
though the officers were two degrees removed from a final
sentencing decision.

The government explained that the prosecutors in
McDonnell's trial presented sufficient evidence because the
standard did not focus on whether McDonnell took official action,
but created “an expectation that some type of official action would
be taken.”

At the trial, Williams testified that he asked for
McDonnell to help him get testing for his dietary supplement at
state medical schools—claiming that McDonnell did not actually help
Williams is irrelevant, according to the government.

Meeting With Senior
Officials

For example, the government pointed to McDonnell's
meeting in which he tried to sway senior officials with control of
the state employee health benefits plan that Williams's supplement
would benefit state employees and asked the officials to meet with
the company lobbyist.

The government further explained the difference
between campaign contributions and the personal contributions
McDonnell accepted, stating that campaign contributors usually
share the general beliefs of a candidate so they benefit indirectly
when that candidate is elected. Similarly, fund-raising events that
provide access to the elected officials are distinguishable from
the quid pro quo exchanges for access that McDonnell exchanged with
Williams.

“Those distinctions are critical,” the brief states.
“It is perfectly appropriate—indeed, protected by the First
Amendment—for a candidate to host a fundraiser that costs $1000 to
attend. But petitioner goes badly astray when he asserts that this
Court's decisions establish ‘a fundamental constitutional right' to
demand such a contribution as the price of an official government
meeting—much less to auction off influence over government
matters.”

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